83 S.W. 308
Mo. Ct. App.
1904
BLAND, P. J.

(after stating the facts). — 1. At the close of. plaintiff’s evidence, the defendant moved for a compulsory nonsuit. The court refused to grant the motion. This ruling is the first error assigned. Plaintiff’s evidence- shows that she had to go to the middle of Tower Grove avenue to take the car, and tends to show that if she had passed south of the gate, she would have been compelled to have gone *182on to the next street south and then returned in the street in order to reach the car, on account of the excavation and the dirt that had been thrown out from it. Plaintiff testified that she was not particularly acquainted with the locality and surroundings where she was hurt, but knew the gates were there and the purpose for which they were used, and knew that trains passed that point at frequent intervals. Plaintiff also testified that she did not anticipate the gate would be let down upon her and did not look to see that it was being let down when she started to cross, and did not know that it was coming down until it struck her.

Lewis Hibbler was the tower man who controlled the four gates from the tower. His testimony is that there is' an ordinary school bell in the tower which he rings just before letting down the gates for the purpose of giving warning to the people on the streets to keep back. On the occasion of plaintiff’s injury, a train was coming from the west over the St. Louis & San Erancisco tracks and was due within two or three minutes. He states that he saw a man and wagon on Manchester avenue, and also saw a man and wagon on Tower Grove avenue, between the two gates, and rang .his bell and as soon as these wagons were out of the way he let down the gates. He did not see the plaintiff at any time. Before letting down the south gate on Tower Grove avenue, he glanced at the gate and street and saw no one and then let down the gate. After glancing at the street and seeing it clear, he looked in another direction and did not know until the next morning that plaintiff was struck by the gate; that there was nothing to obstruct his view of the street and gate, but he “could not look in two directions at one time” and could not keep his eyes on one of the gates all the time, ’ ’ that he saw the gate when it started downward but did not look toward it afterwards.

Plaintiff testified as did several other witnesses. *183that they did not hear the bell, if it was rung. Plaintiff further testified that there was no train in sight when she crossed the tracks and she did not anticipate the gates would be let down, and no train actually arrived until two or three minutes after she was knocked down.

Two legal propositions are presented by this evidence: First, was the defendant company guilty of negligence? If so, was the plaintiff also guilty of such contributory negligence as to bar a recovery? In respect to the first proposition, the law is that it was the duty of the gateman to exercise ordinary care in the operation of the gates to avoid letting them down on any one in the street. This duty was not performed by the gateman merely glancing at the street, as he began to turn the crank and lower the gate, and then turning his eyes in another direction and looking away from the gate he was lowering until after it was down. The exercise of ordinary care required the gateman to keep the gate under his control at all times and to keep his eyes on the street while lowering the gate. If he had performed this duty, the accident would not have happened.

In Feeney v. Railroad, 5 L. R. A. 544, the facts were that plaintiff (a woman) walking in the nighttime, during a rain with an umbrella raised, approached a street crossing where there were gates. As she approached the gates, she saw they were up and without looking further proceeded on her way. The gateman let the gates down more rapidly than usual and struck and injured plaintiff. The gateman testified that he kept his eyes on the gate as it was being lowered but did not see anyone. The New York Court of Appeals, on tliis state of facts, held: “The evidence warranted the jury in finding that the defendant omitted to observe that degree of care required by thé circumstances, and that, owing to such omission, the plaintiff was injured. It was the duty of the defendant to use due *184care in operating the gates so as to protect persons traveling the public highway, not only from being run over by the cars, but also against injury from the gates themselves.

“If on reaching a crossing protected by safety gates, a person finds them raised and motionless, he is at liberty to go on, and, if it becomes necssary to lower the gates while he is passing between them, it should be done with all the care demanded by the peculiar situation, and with due regard to the safety of human life. ”

2. Do.es the plaintiff’s evidence convict her of such contributory negligence as to bar recovery, is the second proposition to be determined: The evidence tends to show that the gates were up when plaintiff started to cross the street. She testified that she did not look at the gates at all and did not anticipate that the south gate would be lowered, for the reason no train was in sight and she heard no bell. This evidence tends to show some negligence on the part of plaintiff; but we do not think it is sufficient to warrant an appellate court to declare, as a matter of law, that plaintiff was guilty of negligence that directly contributed to her injury. The question was one of fact for the jury, to decide under all the facts and circumstances shown by the evidence. Lamb v. Railroad, 147 Mo. 1. c. 185, 48 S. W. 659; Gratiot v. Railway, 116 Mo. 1. c. 466, 21 S. W. 1094; Lorenz v. Railroad, 56 L. R. A. 752; Feeney v. Railroad, supra. We conclude that the case was one for the jury and the motion to nonsuit plaintiff was properly denied.

3. The defendant asked, but the court refused, the following instructions:

“3. The plaintiff is presumed to have known what she would have seen bydhe exercise of ordinary and reasonable observation.

“5. When the plaintiff walked under the gate it was her duty to have looked at it to see whether it was stationary or about to descend, and if you should find *185from the evidence that she failed so to look, then she would not he entitled to recover.

“6. If you should find from the evidence that the plaintiff walked under the gate while it was descending, then she would not he entitled to recover.

“7. The defendant had a right to lower the gate in question in order' to block the crossing against the approaching train, and was not hound to anticipate that the plaintiff would walk upon the street under the gate, hut had a right to presume that the plaintiff would not do so.

“8. If you should find from the evidence that at the time the gate was begun to he lowered the plaintiff was not walking in the street under the gate, hut was walking on the sidewalk, then the defendant had the right to lower the gate and to presume that the defendant would not walk under it. ”

Instruction No. 3 is a mere abstraction and was ' for this reason properly refused. The fifth one is not correct. It was not plaintiff’s duty to continually watch the gate as she crossed the street, if it was Up, as the evidence tends to show, when she started to cross the street and no train was in sight and no warning of any kind was given that it was about to he lowered. She had a right to presume that it would remain up until. the approach of a train would require it to he lowered. The sixth instruction is open to the same objection as the fifth. The seventh is not the law. The gateman was hound to assume that persons might be on the street and it was his duty to look out for them and keep his gate under control as he lowered it so as not to injure them. The evidence shows that the gate was lowered by turning a crank, that it came down slowly when properly operated, and the gateman could stop it at any point in its descent. In such circumstances the law is that it was his duty to have the gate under his control and avoid letting it down on any one who might he in the street, and he had nó right to assume that *186people whom he may have seen on the sidewalk would not step upon the street and pass under the gate when, as the evidence tends to show, people were in the habit of doing this and passing under the south gate on Tower Grove avenue to reach the car in the middle of the street and near the gate. For these reasons we think the eighth instruction was erroneous and was properly refused.

Discovering no reversible error in the record, the judgment is affirmed.

All concur.